A Use Variance Anniversary: Ward v. Scott

On December 15, 1952, the Supreme Court decided Ward v. Scott, 11 N.J. 117 (1952). Though the municipal law applicable at the time that case was decided has largely been superseded by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., Ward has been cited nearly 200 times, according to a Lexis search, including as recently as 2020.

The case arose out of a use variance sought for construction of a commercial building with off-street parking. Under the Zoning Act, the statutory scheme in force at that time, R.S. 40:55-39(d), such variance requests came before the Board of Adjustment. But the Board was empowered only to recommend to the governing body that such a variance be granted. The Board could not itself grant the variance.

The Board recommended the variance sought. The governing body approved that recommendation and directed the issuance of a building permit.

Plaintiff, a resident of the area, filed suit, seeking to void the actions of the Board and the governing body. He argued that the development applicant had not shown “unnecessary hardship,” and that “if the Zoning Act is construed to permit the board of adjustment to recommend a variance without a previous finding of unnecessary hardship then it is unconstitutional.” The Law Division dismissed the complaint, finding that if unnecessary hardship were required, it had been shown. The case then leapfrogged the Appellate Division, as the Supreme Court took up the case on its own motion.

The Court unanimously reversed the variance, but split 4-3 as to the reason for doing that. The majority, speaking through Justice Jacobs, first reaffirmed the ruling in Monmouth Lumber Co. v. Ocean Tp., 9 N.J. 64 (1952), that “where the recommendation procedure of [the statute] is followed by a board of adjustment, there need be no finding of unnecessary hardship” (emphasis by Justice Jacobs).

The majority then rebuffed the claim that the statute was unconstitutional because it did not contain standards sufficiently definite to direct municipal agencies in exercising powers delegated by the Legislature. “[T]he exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power.” Justice Jacobs cited numerous examples in other areas of New Jersey statutory law, as well as federal and out-of-state cases supporting that proposition.

The Legislature did not, Justice Jacobs said, grant municipal bodies “uncontrolled power.” Instead, the Zoning Act listed “the proper zoning purposes to be achieved including the lessening of congestion, the securing of safety from fire, panic and other dangers, the providing of adequate light and the prevention of overcrowding, the avoidance of undue concentration of population, and the promotion of health, morals or general welfare.” The statute also provided procedural protections, including requiring a hearing on notice to interested parties and, where a Board of Adjustment recommends a variance under R.S. 40:55-39(d), “there must be a specific finding of special reasons within the contemplation of the act, and the ultimate relief may not be granted without express approval of the municipal governing body.” Finally, “there is the fixed and far reaching protective restriction in the concluding provision of R.S. 40:55-39 against allowance of the variance unless it can be granted ‘without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'”

These standards were sufficient. Though the Legislature might have tried to identify and enumerate all circumstances under which such a variance might be appropriate, that was not realistic. “[E]xperience has indicated the unwisdom of this course, and an acknowledged advantage of the administrative process has been its flexibility in enabling administrators to deal justly with unanticipated as well as anticipated situations in accordance with general legislative guides.”

Justice Jacobs concluded “[I]n the construction of statutes establishing administrative agencies and defining their powers there is little scope for the ancient shibboleth that a statute in derogation of the common law must be strictly construed, or for placing an emphasis on their particulars which will defeat their obvious purpose. Legislatures create administrative agencies with the desire and expectation that they will perform efficiently the tasks committed to them. That at least, is one of the contemplated social advantages to be weighed in resolving doubtful construction. It is an aim so obvious as to make unavoidable the conclusion that the function which courts are called upon to perform, in carrying into operation such administrative schemes, is constructive, not destructive, to make administrative agencies, wherever reasonably possible, effective instruments for law enforcement, and not to destroy them.”

But the majority reversed the grant of the variance due to the absence of sufficient findings to support it. The only “special reason” that the Board cited in justifying its recommendation was “the proximity of other commercial buildings” to the subject property. But that was a slippery slope. “Every zone plan which divides a community into districts contains residential lands adjacent to business lands; if that fact, without more, were sufficient to call for a variance, the impairment and destruction of the zone plan and zoning ordinance would progressively result, in direct violation of the concluding provision in R.S. 40:55-39 and decisions of this court.” The majority remanded the case to the Board for reconsideration. The dissenters, with Justice Heher writing their opinion, would have voided the actions of the Board and governing body altogether.

The language of Justice Jacobs regarding the constitutional claim and the required detail of standards that govern administrative bodies has been cited many times since 1952. In recent times, there has been criticism of the extent to which administrative rather than legislative bodies make law. Ward v. Scott stands as an example of the view that the “administrative state” is beneficial, not harmful, in the overall governmental scheme.